Law and Magic Blog

Did You See That Scientist Dressed As a Lie Detector?

Jennifer Bard, Texas Tech University School of Law has published A Call for a Moratorium on the Use of Information Derived from Neuroimaging. Here is the abstract.

Any law student who has taken Evidence has read about, or better experienced, an experiment in which a man bursts into a crowded classroom, runs through shouting and then leaves. When questioned directly after the event there is strong disagreement among the witnesses as to what the man was saying, what he was wearing and whether or not he had a gun. Based on the work of psychologist Elizabeth Loftus, now on the faculty of the University of California at Irvine Law School, this experience, more than any dry article about cognitive science, demonstrates the inherent unreliability of human memory and the conviction of eye-witnesses about what they have seen. Lawyers involved in the Innocence Project which is seeking to challenge wrongful convictions based on eye-witness testimony by examining conflicting DNA evidence have further brought these findings to public attention. As they explain, "Research shows that the human mind is not like a tape recorder; we neither record events exactly as we see them, nor recall them like a tape that has been rewound." Yet despite what has become common knowledge about the malleability of human memory, the idea that it’s possible to access the brain directly to find out whether a witness is telling the truth is being put forward by companies which seek to profit from research that suggests that new imaging technology can detect when a human is telling a lie. These companies are advertising this technology as a tool for law enforcement and promoting its use in U.S. trials as a way of helping juries to assess the credibility of witnesses.

This article explores these claims that neuroimaging scans can be used to detect lies, which far exceed those made by responsible scientists, and also puts them in the context of a series of U.S. Supreme Court cases which have dramatically changed how scientific (forensic) evidence can be presented to the jury in criminal trials. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L. Ed. 2d 469 (1993)(establishing new criteria for admission of scientific evidence); Crawford v. Washington, 541 U.S. 36 (2006) (requiring that defendants directly face accusors). It also addresses the significant criticisms being brought against what has often been incautious adoption of unreliable techniques. 'Strengthening Forensic Science in the United States: A Path Forward' (National Research Council 2009).

In this article I argue that promises of lie detection are not only based on false premises, but they are harmful to the integrity of the legal system because they seek to substitute a technology, which is not just undeveloped and inadequately tested but inherently flawed, for the judgment of the fact-finder, judge or jury, in a criminal trial. I conclude that even if there was neuroimaging technology which could provide direct access to human thought, the result would share the inaccuracies and subjectivity that we already know is an inherent feature of human memory. Moreover, because this technology promises to do something that jurors know they cannot - determine when a person is lying - there is a substantial risk that it will prejudice defendants because jurors will substitute the results of the technology for their own collective judgment.

Download the paper from SSRN at the link.

More On fMRI and Its Probative Value

William A. Woodruff, Campbell University School of Law, has published Functional Magnetic Resonance Imaging to Detect Deception: Not Ready for the Courtroom. Here is the abstract.

Despite media hype and at least two companies marketing themselves as offering scientific expert testimony admissible in US courts on whether a witness is telling the truth, recent decisions by a trial court in New York and a Federal Magistrate Judge in Tennessee indicate that replacing the jury deliberation room with a magnetic resonance imaging machine is not in the foreseeable future.

Functional magnetic resonance imaging (fMRI), an emerging field of neuroscience that seeks to correlate brain activity to behavior, has been touted by some to be the new lie detector. The MRI machine is able to “see” the increase in oxygenated blood as it fuels various regions of the brain during actions and activities. The hypothesis underlying fMRI as a lie detector is that telling the truth is the natural or normal response of the brain and one would not expect to see increased activity over and above the normal background level of brain activity. But when the subject begins to prevaricate, more brain activity is needed and more oxygenated blood is directed to those regions of the brain processing the “lie.” This blood oxygenation level-dependent (BOLD) differential is measurable by the fMRI.

Comparing the BOLD differential between subjects known to be telling the truth and then deliberately lying allows researchers to hypothesize that increased BOLD above the base line in certain regions of the brain when the subject is answering questions is an indication of deception.

It might be in the lab, but the rules of evidence as applied in US courts considers the citizens of the community selected to sit on the jury more reliable “lie detectors” than the new technology represented by fMRI. Two recent decisions, one in a Federal court applying the Federal Daubert standard and one is New York state court applying the Frye general acceptance test, rejected expert testimony based on the results of fMRI scanning.

In finding fMRI failed to satisfy the exacting standard of Federal Rule of Evidence 702, a Federal magistrate judge in United States v. Semrau measured the new technology against the Daubert reliability factors. fMRI passed the first two factors, testing and peer review. The court noted that the technology was certainly capable of and was being tested and that numerous articles concerning fMRI had appeared in the peer reviewed scientific literature. 

The next two Daubert factors, the known or potential error rate and the existence and maintenance of standards, however posed significant problems. While there may be some identifiable error rates associated with fMRI in the controlled lab setting, it was undisputed that error rates in the “real world” application are completely unknown. Similarly, protocols exist for lab studies of fMRI but not such standards exist for real-life applications. In fact, Dr. Steven Larkin, the expert witness for plaintiff in Semrau, and one of the leading proponents of fMRI as a lie detector admitted to deviating from his own protocol in administering the test on Dr. Semrau.

Finally, the court found that fMRI as a reliable lie detector had not achieved general acceptance by the scientific community, the fifth Daubert factor. By failing to meet three of the five Daubert factors, the magistrate judge concluded that fMRI was not sufficiently reliable to admit under FRE 702.

Download the paper from SSRN at the link.

The magistrate judge also found the use of fMRI to bolster Dr. Semrau’s credibility more prejudicial than probative. Relying primarily on cases excluding polygraph examinations taken without the knowledge or participation of the opposing party, the magistrate judge concluded that the unilateral fMRI test here lacked probative value because Dr. Semrau faced no negative consequences by undergoing the test. Accordingly, the evidence was excluded under FRE 403.

The New York case, Wilson v. Corestaff Services L.P., applied the Frye general acceptance standard to fMRI based expert testimony to bolster the plaintiff’s witness in an employment discrimination case. The court was troubled be the notion that fMRI based expert testimony would usurp the jury’s responsibility to determine the credibility of the witnesses, a dramatic departure from the traditions of a common law trial. Additionally, the court found the plaintiff was unable to show the use of fMRI to determine truthfulness had been generally accepted by the relevant scientific community, the standard for admissibility under Frye.

The analysis in Semrau and Wilson combined imposes significant hurdles to the admissibility of fMRI on the issue of witness credibility. The procedure failed to meet the reliability standards of FRE 702 and the general acceptance requirement of Frye. Furthermore, concerns over jury confusion, usurpation of the traditional function of the jury in judging credibility, and whether such testimony is even an appropriate matter for expert opinion raise additional hurdles. For proponents of fMRI expert testimony on witness credibility the obstacles to admissibility are significant under current law.

Gerald Uelmen and the Lawyer/Magician Analogy

Gerald Uelmen of Santa Clara University Law School writes here about the importance of exhausting federal due process claims at trial by intoning "magic words." He says, "I frequently compare trial lawyers to wizards who must recite precise magical incantations before they wave their magic wands and attempt to make evidence disappear." 

Of course, he is talking here about wizards like Merlin and Harry Potter, and I must point out that as far as I know, there are no such beings in the real world. What's also interesting is the assumption, common in popular culture, that these wizards must 1) pronounce magic words and 2) wave magic wands in order to obtain a particular result. I'd be interested to know what might happen if they left out one or the other. In law, we know. Generally speaking, the lawyer must 1) speak the words and 2) perform the act (for example, speak the words in the correct order or at the correct time or in the correct place). See also my prior post on getting exhibits admitted.

Secular magicians, by contrast, make objects disappear, but not permanently. When a lawyer "attempts to make evidence disappear," as in Professor Uelmen's examples, she wants it to disappear completely. If she gets the outcome she wants, it will no longer have any effect (or should have no effect) on the outcome of the trial. Lawyers and judges actually do have great powers, by their agreement, by our agreement, and through use of these magical words.

Brain Scans in the Courtroom

Francis X. Shen, Vanderbilt Law School, and Owen D. Jones, Vanderbilt Law School & Department of Biological Sciences, have published Brain Scans as Evidence: Truths, Proofs, Lies, and Lessons in volume 62 of the Mercer Law Review (2011). Here is the abstract.

This contribution to the Brain Sciences in the Courtroom Symposium identifies and discusses issues important to admissibility determinations when courts confront brain-scan evidence. Through the vehicle of the landmark 2010 federal criminal trial U.S. v. Semrau (which considered, for the first time, the admissibility of brain scans for lie detection purposes) this article highlights critical evidentiary issues involving: 1) experimental design; 2) ecological and external validity; 3) subject compliance with researcher instructions; 4) false positives; and 5) drawing inferences about individuals from group data. The article’s lessons are broadly applicable to the new wave of neurolaw cases now being seen in U.S. courts.

Download the article from SSRN at the link.

Who Ya Gonna Believe? Me? Or Your Lying' Eyes?

NPR's Robert Krulwich brings us yet more proof that eyewitness evidence might not be all that reliable. Professor Kokichi Sugihara creates simple (or not so simple) little gadgets that make a mess of our brains. "See" here.

The Salem Witchcraft Trials and Today's Prosecutors

Jane Campbell Moriarity, University of Akron School of Law, has published Wonders of the Invisible World Prosecutorial Syndrome and Profile Evidence in the Salem Witchcraft Trials in volume 26 of the Vermont Law Review. Here is the abstract.

The primary aims of this Article are to deconstruct the evidence from the Salem witchcraft trials and to determine whether those prosecutions relied upon syndrome and profile evidence, and whether such, evidence played a substantial role in the convictions. The secondary aim is to determine whether modern cases employ evidentiary methods sufficiently similar to the Salem cases such that we should reconsider prosecutorial syndrome and profile evidence.

This Article concludes that prosecutorial syndrome evidence and, to a lesser degree, prosecutorial profile evidence, were relied upon in the Salem cases and were important to the convictions. Moreover, in modem cases, which rely on syndromes for purposes of conviction and profiles for purposes of reasonable suspicion and probable cause, the essential cognitive error in the Salem trials is still present in the use of syndrome and profile evidence: the belief that criminal behavior can be determined with sufficient certainty by considering constellations of behaviors in either victims or defendants. This Article argues that experience-based conclusions about the relationship between observed behaviors and crime, when not subjected to a more searching or science-based scrutiny, are both incomplete and laced with the potential for error.

As developed more fully in Part VI, infra, courts have shown a great willingness to accept prosecutorial profile and syndrome evidence, the validity of which is premised primarily on the experience of law enforcement officers and treating therapists. Courts have not been forceful in requiring proof of the underlying belief structures that animate profile and syndrome evidence, namely that crime is meaningfully related to defendant behavior and victim behavior. Part VI submits that current appreciation for scientific method, along with the Supreme Court's mandate that trial courts engage in rigorous "gatekeeping" of expert evidence" and amended Federal Rule of Evidence 702, collectively support greater proof of reliability and validity of prosecutorial syndrome and profile evidence prior to its admissibility at trial.

Although the comparison between the witchcraft trials of 1692 and modem trials may be considered inflammatory, it is important to remember that the experts relied upon in Salem were employing precepts that had been in use for approximately a century." Moreover, although witchcraft may not have been the cause, there were numerous examples of people and animals in Salem becoming sick and dying. Thus, some of the harm was very real, even if the cause misperceived. Finally, it is the respective methodology under comparison, not the actual evidence. The law does not always recognize its own errors while they are occurring, but often discovers them only in the refracted light of history.

Download the full text of the Article from SSRN at the link.

Professor Moriarty discusses seventeenth century and modern "ways of knowing" and their probative value, suggesting that while they haven't changed since 1692, the assumptions we make about what we observe certainly has. She points out that scientists sometimes term "insights" what they use to fuel hypotheses (and then test by the scientific method). I note that others term these insights something else ("visions" perhaps) and don't test them at all.

Professor Moriarty's piece links up nicely, it seems to me, with what we seem to be learning about magic and neuroscience, and how magicians (and others) deceive us so easily. As Hercule Poirot, a devotee of justice, as opposed to prosecution, and a remarkable though fictional figure-outer of puzzles, it gives one furiously to think. His creator, like other good mystery writers, knew a lot about deception herself. But that's material for another post, about mystery writers and magic.

Spirit Communications As Hearsay: They're Out-of-Court Statements (REALLY Out-Of-Court Statements)

Reader Frederick Brodie notes that the Arizona State Bar wants to rid itself of Charna Johnson, the lawyer who says she "channeled" her client's dead wife while representing another client. A disciplinary panel recommended a lesser sanction, suspension and probation instead of disbarment. I blogged this quite remarkable case earlier in the year. Mr. Brodie points out that the statements attributed to the wife raise the hearsay question, which in turn raises another issue. Could the statements be admissible in court? I'm certainly not an expert in the rules of evidence, but I'll give it a whirl (a very tiny whirl). Let's look at the Rules of Evidence, taking as a sample New Hampshire's rules (well, why not?)

What is the definition of "unavailable" for purposes of New Hampshire's rule 804? Being dead seems to qualify, but let's check the rule to be certain.

(a) Definition of unavailability. "Unavailability as a witness" includes situations in which the declarant -

        (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his or her statement; or

        (2) persists in refusing to testify concerning the subject matter of his or her statement despite an order of the court to do so; or

        (3) testifies to a lack of memory of the subject matter of his or her statement; or

        (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

        (5) is absent from the hearing and the proponent of the witness' statement has been unable to procure the witness' attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the witness' attendance or testimony) by process or other reasonable means.
      

I'd say such a declarant fits under (4): "unable to present or to testify at the hearing because of death".

Would a proponent's statements about what the dead person has communicated after death fit within any of the exceptions? As given to a proponent, could they fit, say, within (5) or (6) below?

(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

        (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

        (2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that his or her death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

        (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in this position would not have made the statement unless the person believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

        (4) Statement of personal or family history. (A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.

        (5) Statement of a deceased person. In actions, suits or proceedings by or against the representatives of deceased persons, including proceedings for the probate of wills, any statement of the deceased, whether oral or written, shall not be excluded as hearsay provided the Trial Judge shall first find as a fact that the statement was made by decedent, and that it was made in good faith and on decedent's personal knowledge.

        (6) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.

Well, maybe. I suppose one could argue that the proponent might say that deceased person might have more information than anyone else concerning the deceased person's will. But the trial judge still has to find that the statement was made by the deceased person. Aye, there's the rub. Under (6), then? Is the statement offered as evidence of a material fact? More probative than other evidence which the proponent can gather? Will justice be served? Again, we are back to the question of whether these spirit communications are trustworthy, and I'm not suggesting here that the proponent is lying about them, but whether a third party, hearing them, can discern whether they represent communications from the deceased or not. The proponent might believe in good faith that they are communications from the deceased. But is that good enough for the court? These communications are made after death and in the presence of no living witness, so that the safeguards that the rules of evidence are set up to create don't work. One could, I suppose, have a notary standing by at a seance in case a spirit came through with important information. One could compare them with statements made by the deceased before death: are they consistent with those statements (see b(1) or b(4), for example)? Or are they consistent with the statements of others on those topics?

Although the statements we are talking about in this case are oral, we do know of (alleged) written spirit communications that have ended up in court. Indeed, there is an entire body of study devoted to written spirit communications (automatic writing being an example), and some courts actually have discussed written spirit communications, although not as evidence. See for example the English case of Cummins v. Bond, in which the court specifically addresses the question of whether a spirit could hold copyright to a work it dictated to a living person (the court says no). Other cases as in R. v. Young (1995) deal with attempts by the jury to contact the victim to get information about the guilt of the defendant. Judges generally frown on that sort of thing.

Ultimately, I think we get into the determination of whether the statements are actually those of the deceased or those of the proponent, and the question of the probative value of the statements, both of which, it seems to me bear on b(6). "Name and address of the address" would seem to be a problem, though. Is the name of the decedent with the cemetery plot location enough? What if the person was cremated? Or if the person's body was never located? I could go on, but at this point, I yield to the evidence experts out there. I could find no U.S. cases discussing spirit communications as hearsay although I found a fair number of cases discussing the effect of belief in spiritualism on the validity of wills, for example. For more on that topic see Christopher Buccafusco's Spiritualism and Wills in the Age of Contract.

You Cite My Paper, I'll Cite Yours

The Scholarly Kitchen Blog discusses why one needs to understand statistics and such--or at least have a trusted acquaintance who can explain the field. In his post Reference List Length and Citations: A Spurious Relationship, blogger Philip Davis investigates the findings published in a recent study that the more references one tacks onto one's publication, the more references one generates to one's own work. One of the researchers told Nature, the prestigious science mag, "There is a ridiculously strong relationship between the number of citations a paper receives and its number of references. If you want to get more cited, the answer could be to cite more people."

Mr. Davis questions that conclusion and he uses an interesting law-related analogy to demonstrate the problem.

For instance, ice cream sales are highly correlated with the U.S. murder rate, but no one in their right mind would suggest that ice cream is responsible for violent behavior — that would give real meaning to “death by chocolate.”  The underlying cause that connects murder with ice cream sales is heat.  Heat makes people irritable and irrational, and given the right conditions, may lead to violent behavior.   There is no theoretical basis of (sic) ice cream leading to violent behavior — this relationship is merely spurious (link omitted--Ed.)

Mr. Webster, the principal investigator, responds to Mr. Davis here, in the comments section; others also weigh in. Interesting debate.

We do need to look out for those logical fallacies, of course--finding two events that coincide conveniently, looking for links, and then thinking we find them because we've overlooked other, more likely possibilities. We are pattern seeking creatures and we do like narrative. It orders the world.

For more about logical fallacies, I recommend David Hackett Fischer's Historians' Fallacies (Harper Torchbooks, 1970), which is wonderfully readable, and not just for historians.

"Wanna See Me Fly All the Way 'Round the Earth In Less Than a Second? Wanna See It Again?" Law, Magic, and Powers of Observation

Calling all evidence and criminal justice/procedure profs: test your students' powers of observation. No, not with that gorilla walking through the students playing basketball video. Here's a new one posted by Richard Wiseman at his website Quirkology. (It's also uploaded to YouTube). In it he does a card trick, but that's not all that's going on.

Dr. Wiseman and his lovely assistant demonstrate how bad most people are at observation when they are concentrating on one task. Dateline NBC also had a piece July 16 on this point: Dr. Michael Shermer was the guest.

What I particularly like about the Wiseman video, however, is that it presents two concepts. First, it makes the point above--that we tend to concentrate on the point to which the presenter directs us. Second, and this is what I think is of value to the law professor and student, is that when Dr. Wiseman "pulls back the curtain," and allows us to see how the trick is done, he also allows us to contemplate the value and the importance of narrative,of viewpoint, and of the whole picture.

Dr. Wiseman fools us not once but twice. First he fools us by letting us believe that the trick has to something to do with the cards. Well, it does, but only partially. Second, he fools us by letting us think that the video itself is the entire narrative. When the camera pulls back to show us the trick once again, and how the magicians and crew have constructed it, we also see it from their viewpoint. And we understand the importance of getting all the evidence. Students watching a police or client interview can do the same thing. They can ask themselves, "Am I getting the entire story? What, if anything, is missing? What, if anything, is the bias? Whose viewpoint is not getting through?" Students have great difficulty seeing viewpoints other than their own, and they are so often convinced that they see the truth, and so upset to discover that they might be incorrect. (Many human beings have this same problem, but I'm limiting my comments to students). They can then ask, "How is the narrative constructed? To what end? What's the point?" The ultimate question--Qui bono? 

Neurolaw On NPR

Barbara Bradley Hagerty will be a guest on Talk of the Nation tomorrow (July 6) to discuss neurolaw, the new discipline that Tennessee prosecutor Drew Robinson calls "smoke and mirrors" and defense attorney Shari Tayloe Young says is "critical evidence."

For more on neurolaw see

The Initiative On Neuroscience and the Law (Baylor University)

The Law and Neuroscience Project

Neuroethics and Law Blog

Neurolaw Blog